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HUMMEL'S WHARF FIRE COMPANY v. OLIVE J. LEITNER (04/30/82)

April 30, 1982

HUMMEL'S WHARF FIRE COMPANY, APPELLANT
v.
OLIVE J. LEITNER



No. 113 Harrisburg, 1980, Appeal from the Order dated April 29, 1980, Court of Common Pleas, Civil Division, Snyder County at No. 408-1975.

Before Price, Johnson and Shertz, JJ. Shertz, J. did not participate in the consideration or review of this case.

Per Curiam:

The Order dated April 29, 1980 is affirmed on the comprehensive opinion of President Judge Wilson.

SHERTZ, J. did not participate in the consideration or review of this case.

IN THE COURT OF COMMON PLEAS, 17TH JUDICIAL DISTRICT SNYDER COUNTY BRANCH - CIVIL

NO. 408 - 1975

HUMMEL'S WHARF FIRE COMPANY, Plaintiff, vs. OLIVE J. LEITNER, Defendant.

IN ASSUMPSIT

Before the court are defendant's post trial motions. The only one of which is here considered is defendant's claim of judicial error in consequence of the court's failure to quash plaintiff's appeal from an arbitration award as being untimely. Because a post trial hearing held December 27, 1978 disclosed that the award of the arbitrators was docketed May 4, 1976, and plaintiff's appeal was not perfected until May 25, 1976, it is determined that the appeal was untimely. Thus defendant's motion for judgment non obstante veredicto must be sustained.

The post trial motions were made following trial which developed from the following related circumstances. Plaintiff entered judgment by confession upon default consistent with the cognovit provisions of a note executed by the defendant as a co-maker with Norman S. Leitner, wherein the plaintiff was payee. This judgment was stricken for the failure of the plaintiff to proceed by suit in assumpsit. Thereafter plaintiff filed a complaint in assumpsit, which complaint was heard by arbitrators on April 30, 1976. On May 4, 1976 the arbitrators found for the defendant, filed their report, and the chairman notified the parties of the award.

Thereafter plaintiff on May 20, 1976 filed a notice and affidavit of appeal with the Prothonotary. However the recognizance in support of the appeal was not filed until May 25, 1976.

Prior to trial on October 21, 1976 the court heard argument in respect to defendant's motion to quash the appeal based on the proposition that the plaintiff did not perfect his appeal within the twenty (20) days as provided by law. Plaintiff's motion was dismissed and trial was held de novo, at which trial plaintiff's motion for a directed verdict against defendant was sustained.

On October 25, 1976 the defendant filed motions in arrest of judgment, new trial, and judgment N.O.V., upon which a hearing was held December 27, 1978 to receive testimony concerning the date of the entry of the arbitrators' award on the docket. At the hearing the Prothonotary testified that the award would have been entered on the docket within an hour to an hour and one-half after filing.

He expressed the policy of the office as being to not date the entry of the award on the docket but to give priority to the entry of judgments over all other business, and as arbitration awards are in the nature of a judgment, the award had to have been entered on the day it was filed. Thus it is determined that as May 4, 1976 was no partial holiday, and that although no date of entry appears on ...


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